LPGA introduces strict dress code for golfers. Could your boss do the same?

31 July 2017

The Ladies Professional Golf Association (LPGA) has issued a new set of rules for on-course apparel which have received considerable backlash from golfers and fans alike. The new rules forbid female golfers from wearing plunging necklines, leggings, collar-less shirts or revealing skirts on the course. A breach of these new rules will carry a $1000 fine that doubles each time the player reoffends.

German golfer Sandra Gal has voiced her objections about the new rules and said “I think racerbacks look great on women and I think short skirts have been around forever, especially in tennis, and I don’t think that’s hurt the sport at all... Our objective is clear – play good golf.” Many objectors have accused the LPGA of “body-shaming” the female players. The British Women in Sport group noted that “We should always focus on the talent and athleticism of our female sport stars, as opposed to their appearance”.

In defence of the restrictions, the LPGA tour communications officer Heather Daly-Donofrio told Golf Digest “The dress code requires players to present themselves in a professional manner to reflect a positive image for the game.”

This raises an important question, namely, to what extent are employers entitled to set and enforce their own standards of appearance, including a dress code? An employer has the ability to prescribe a uniform for workers, as we see every day with police officers, supermarket staff and air hostesses for example. Many other industries, including corporate offices, impose dress standards.

Dress standards will normally be specified in an employee’s contractual terms and conditions of employment but can also be implemented through internal policy. If the required standard of dress and presentation is set out in the employment agreement it will be easily enforceable as a term of the contract.

However, the enforceability of a dress code put in place through policy is dependent on the extent to which the required dress code is reasonable in the context of the business. In general, requirements such as a particular hair length or style for safety purposes, the wearing of a company uniform or logo or the wearing of professional attire are all likely to be reasonable expectations in a business context.

An employer may also convey their expectations regarding dress and presentation through instructions to employees. Employees have a duty to obey all lawful and reasonable instructions from their employer. As is so often the case, the process by which an employer enforces a dress code is paramount. This is illustrated through the case of Caroline Hangar.

Ms Hangar was employed as a property manager by Ray White Real Estate in Fielding. Ms Hangar turned up to work with bright pink stripes through her hair as a result of a botched dye job. After discussing this with her employer she agreed to have it fixed two days later. When the dye remained in the following week she was told to go home and “sort it out”. She left the office and then went on sick leave before resigning the following month.

Ms Hangar claimed she was suspended because of the colour of her hair, and was not given prior warning that a suspension could happen. Ray White contended that Ms Hangar was not suspended and that she was sent home to ensure she complied with her employment agreement which stated that she must maintain "a professional, neat and well groomed image".

However, the Employment Relations Authority said that there was no way that she could have been sent home without being suspended. Further, the employer’s failure to have a discussion about why the pink streaks were still visible, or what efforts were made to have them removed was unfair and disadvantaged Ms Hangar. As a result of this unfair application of the internal policy, Ms Hangar was awarded $18,000.

Although a requirement that employees should not have pink hair might be reasonable in the context of Ray White Real Estate’s business (the Authority did not determine this one way or the other), the process by which they dealt with Ms Hangar’s hair-dresser’s mishap had serious consequences.

A breach of dress code on its own is unlikely to amount to serious misconduct. Therefore suspension or dismissal for non-compliance is likely to be considered unfair. It is necessary to go through a series of warnings about the misconduct prior to considering dismissal or suspension.

Even following a series of warnings, an employer should be cautious as to whether the breach is sufficiently serious to justify dismissal or suspension. This may depend on whether the dismissal is for a refusal to obey a lawful and reasonable instruction, or whether it is simply for breaching the dress code. Relevant considerations, such as cultural or religious reasons for why the employee dresses or presents themselves as they do, ought to be taken into account.

With regard to the new golfing rules, the question becomes whether the restrictions are reasonable in the context of the LPGA’s business. The LPGA states that they wish to "Be a recognized worldwide leader in sport by providing women the opportunity to pursue their dreams through the game of golf.” It is likely that the LPGA has introduced these restrictions for similar reasons to a corporate office, to promote professionalism and to maintain a high standard of personal presentation. Whether this is justified, especially considering the differing standards of dress required in other sports, is certainly up for debate.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.